Holsten v. Massey
| Citation | 200 W.Va. 775,490 S.E.2d 864 |
| Decision Date | 16 July 1997 |
| Docket Number | No. 23459,23459 |
| Court | Supreme Court of West Virginia |
| Parties | Steven P. HOLSTEN, Administrator of the Estate of Angela Ethelmae Holsten, and Steven P. Holsten, Individually, Plaintiff Below, Appellant, v. Russell MASSEY, Sharon Diane Pauley, M & M Convenient Mart, the County Commission of Boone County, the Boone County Sheriff's Department, and L.L. Greene, Individually and in his Capacity as Deputy Sheriff of the Boone County Sheriff's Department, Defendants Below, Appellees. |
Syllabus by the Court
1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. " ' Syl. pt. 3, Mallamo v. Town of Rivesville, 197 W.Va. 616, 477 S.E.2d 525 (1996).
3. Syl. pt 4, Mallamo v. Town of Rivesville, 197 W.Va. 616, 477 S.E.2d 525 (1996).
4. Syl. pt. 8,Randall v. Fairmont City Police Dept., 186 W.Va. 336, 412 S.E.2d 737 (1991).
5. "One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law." Syl. pt. 2, Smith v. West Virginia State Board of Education, 170 W.Va. 593, 295 S.E.2d 680 (1982).
6. The wanton or reckless conduct exception to an employee's (as the term "employee" is defined in the Governmental Tort Claims and Insurance Reform Act) immunity under W.Va.Code, 29-12A-5(b)(2) [1986] of the Governmental Tort Claims and Insurance Reform Act is an exception to the public duty doctrine separate and distinct from the common-law special relationship exception to the public duty doctrine.
7. " Syl. pt. 3, Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d 761 (1995).
8. W. Va.Code, 29-12A-5(a)(5) [1986] clearly contemplates immunity for a political subdivision from tort liability for "the failure to provide ... police [or] law enforcement ... protection."
J. Michael Ranson, Cynthia M. Salmons, Ranson Law Offices, Charleston, for Steven P. Holsten.
Steven P. McGowan, Jeffrey K. Phillips, Steptoe & Johnson, Charleston, for County Commission of Boone County and L.L. Greene.
The appellant herein and the plaintiff below, Steven P. Holsten, individually and as the administrator of the estate of Angela Ethelmae Holsten, appeals the October 23, 1995 order of the Circuit Court of Boone County which granted summary judgment in favor of the appellees herein and the defendants below, the County Commission of Boone County and L.L. Greene, a Deputy Sheriff for the Boone County Sheriff's Department. 1 For reasons explained below, we affirm the October 23, 1995 order of the circuit court.
This case arose after Angela Holsten, the appellant's wife, was killed in a car accident in Boone County on April 26, 1993. The car accident occurred when Russell Massey, who had a reported blood alcohol content of .284, crossed the center line and drove his car head-on into a car driven by Angela Holsten.
Approximately four months prior to the April 26, 1993 car accident which killed Angela Holsten, Massey had operated another vehicle while allegedly under the influence of alcohol wherein his only passenger, Patricia Perdue, was killed. 2 It is the appellant's contention that had appellee Deputy Greene properly investigated the prior car accident, Massey's license would have been revoked and/or he would have been incarcerated and, therefore, would not have been behind the wheel of the car that killed Angela Holsten on April 26, 1993.
The facts surrounding the investigation of the December 26, 1992 car accident which killed Patricia Perdue (hereinafter the "Perdue accident") are disputed. Apparently, the roadways in Boone County were slick and icy on December 26, 1992. In fact, Deputy Greene asserts that he had investigated at least two other single car accidents prior to the Perdue accident. When Deputy Greene arrived at the Perdue accident scene, at least two other law enforcement officers and various medical personnel were already there. Deputy Greene only spoke with Massey for a few moments before Massey was transported by ambulance from the scene of the accident to an area hospital.
At the hospital Deputy Greene spoke with Massey on at least three occasions. While in the hospital Massey told Deputy Greene that he had been drinking prior to the accident. The appellees state that Massey specifically told Deputy Greene that he and another person split a six pack of beer. Moreover, the appellant notes that a few days after the accident another officer who had been on the scene of the Perdue car accident told Deputy Greene that he smelled alcohol on Massey at the accident scene. Deputy Greene noted this information in his police report.
Additionally, the appellant asserts that Deputy Greene recklessly failed to obtain the blood alcohol test results from the hospital even though he was informed on the day of the Perdue accident that those results were available. Conversely, the appellees state that Deputy Greene went to great lengths to obtain the test results; however, the hospital misplaced or ignored his subpoenas requesting the test results. 3 Thus, it was the hospital's actions, according to Deputy Greene, that prevented him from timely obtaining the blood alcohol test results. The appellant maintains that certain hospital employees denied that Deputy Greene had asked for the results. Deputy Greene maintains that those employees actually stated that they did not remember him asking for the test results. Moreover, the appellant asserts that when Perdue's family inquired as to why charges were not being brought against Massey for Perdue's death, Deputy Greene allegedly told them that "the 'reason Russell Massey would not be prosecuted' for [Perdue's] death was because the blood alcohol content results of Massey had been 'misplaced or lost by hospital personnel' at [the area hospital][.]" Regardless of why the test results were not readily available, the fact is that it was not until April 21, 1993, five days after Angela Holsten died in the 1993 car accident and almost four months after the Perdue accident, that the Boone County Grand Jury returned a four-count indictment against Massey relating to Perdue's death in the 1992 car accident.
Thus, the appellant filed a complaint against the appellees asserting that it was appellee Deputy Greene's reckless and careless investigation of the December 26, 1992 car accident that led to his wife's death in the 1993 car accident. Additionally, the complaint alleged that the County Commission of Boone County was liable for damages caused by the negligent acts of Deputy Greene pursuant to the Governmental Tort Claims and Insurance Reform Act set forth in W. Va.Code, 29-12A-1 et seq. The premise of the appellant's argument is that had the 1992 car accident been properly investigated by appellee Deputy Greene, then Massey would have lost his driver's license and/or been incarcerated and, thus, would not have caused the 1993 car accident which killed his wife.
In an October 23, 1995 order the circuit court granted summary judgment for the appellees after determining that the appellees were "not liable for their mere failure to provide adequate police protection ..." and that the appellant failed to allege any facts to support his allegation that the appellees breached a special duty owed to his deceased wife. Additionally, the circuit court determined that even if the appellant had alleged facts to support his argument that the appellees breached a special duty, the appellees are immune pursuant to the Governmental Tort Claims and Insurance Reform Act.
At the outset, we note that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We are mindful that
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